San José & Almaden Railroad v. Mayne

Foote, C. — This action was instituted for the purpose of condemning a right of way for a railroad through [567]the lands of John Mayne, the defendant and appellant.

The cause was tried with the intervention of a jury, to whom were referred special issues of fact for determination.

Upon the verdict of the jury on the special issues, adopted by the court, judgment was entered, and a final order of condemnation made by the trial court.

The amount of money awarded by the jury as compensation for the land taken, and also that awarded for damages to the land not taken, was paid into court by the plaintiff, and accepted by the defendant upon the following terms: “And I hereby abandon all defense to this action, except as to the amount of damages that I may be entitled to in the event that a new trial shall be granted herein,” signed by the defendant and his attorneys of record. This last proceeding is in accordance with the provisions of section 1254 of the Code of Civil Procedure.

A motion for a new trial -was made and denied; from the order made in the premises, and the judgment, the defendant appeals. He claims that the court erred in deciding that the defendant was not entitled to prove the value of the land proposed to be taken at the date of the summons issued in the case.

From the transcript it appears that John Eyan, a witness for the plaintiff, was asked what would be a fair price for the defendant's land, taking it all together. He was allowed to answer over the defendant's objection, one of the grounds of which was that the question related to the present value of the land, and not to its value at the date of the summons. The court overruled the objection, on the ground, as stated, that the present value of the land, and not the value at the date of the summons, must be ascertained. To which ruling the defendant excepted.

Again, the defendant proposed to prove by competent [568]evidence “ what the value of the land proposed to be condemned was at the date of the summons in this case, to which plaintiff objected, on the ground that the present value, and not the value at the date of the summons, must be taken in determining the value by the jury.” The court sustained the objection, and the defendant duly excepted.